People v. Lara CA5

Filed 3/4/22 P. v. Lara CA5
Reposting correct version
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079648
Plaintiff and Respondent,
(Super. Ct. No. BF166835A)
v.
JOSE LUIS LARA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Gregory A.
Pulskamp, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Jose Luis Lara warned a man to “not say” anything and then shot him in the
stomach. As the man lay wounded, he reached for his phone but it was gone. For his
actions, Lara was convicted of several crimes, including robbery.
On appeal, Lara claims the evidence was insufficient to prove robbery, the court
failed to instruct on theft as a lesser included offense to robbery, his counsel was
ineffective relative to robbery, and fines and fees imposed as part of the judgment were
improper. We will affirm the judgment.
BACKGROUND
Charges
The Kern County District Attorney charged Lara with committing four crimes:
attempted murder (Pen. Code, 1 § 664/187), burglary (§ 460), robbery (§ 211), and assault
with a firearm (§ 245, subd. (a)(2)). The charges included enhancements for
premeditation and deliberation (§ 664, subd. (a)), discharging a firearm and causing great
bodily injury (§ 12022.53, subd. (d), using a firearm (§ 12022.5, subd. (a)), and causing
great bodily injury (§ 12022.7, subd. (a)).
Trial Evidence
The victim testified Lara and another man known as Burrito came to his residence
late one night. The victim believed Lara and Burrito had brought a bag of stolen mail.
While they were sifting through it, a fourth man went outside and removed various tools
from Lara’s vehicle.
At some point, Lara and Burrito left the residence. They returned because Burrito,
who now toted a shotgun, was “looking for his tool bag.” Burrito and Lara “removed
[the fourth man] from the room.”
About a minute later, Lara came back into the room with the shotgun, put a knee
on the victim, pointed the shotgun at him, and stated, “ ‘[s]hut the fuck up, mother-
fucker. Better not say shit.’ ” He pulled the trigger.
1 Undesignated statutory references are to the Penal Code.
2.
The victim, grievously wounded, “went blank” and “saw … a white cloud.”2 He
“tried reaching for anything” and could not find his phone. Eventually, first responders
arrived, and the victim survived. 3
Law enforcement officers investigating the crime received “call detail records” for
the victim’s phone. Those records indicated the victim’s phone came into contact with a
“cell tower” near Lara’s home shortly after the shooting.4
Verdict and Sentence
Lara was found guilty as charged. He was sentenced to serve 32 years to life in
prison. Various fines and fees, detailed below, were also imposed.
DISCUSSION
There are four claims to address. One, was the evidence sufficient to prove
robbery? Two, did the court err by not instructing the jury theft was a lesser included
offense to robbery? Three, was Lara’s counsel ineffective for not requesting specific,
pinpoint instructions on robbery? Four, did the court err in imposing the fines and fees
without first holding a hearing to determine Lara’s ability to pay?
The People oppose each contention. We find no merit in Lara’s arguments and
affirm the judgment.
I. The Evidence Sufficiently Proved Robbery
Lara asserts “the prosecution did not meet its burden of proving all of the elements
of the crime of robbery, because the record does not contain substantial evidence that [he]
2 One witness testified the victim was “holding his intestines in his hands,
screaming.”
3 A fifth person found the victim and called for help.
4 Cell tower data does not provide an exact location for a cell phone. The records in
this case indicated the cell phone interacted with a tower near the victim’s home and later
with a tower near Lara’s home during the time relevant to this crime.
3.
formed an intent to steal before or during the shooting, or that” he was the robber. 5 The
People disagree. We agree with the People the evidence was sufficient to prove robbery.
“When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] … We presume in support of
the judgment the existence of every fact the trier of fact reasonably could infer from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility.” (People v. Lindberg (2008)
45 Cal.4th 1, 27.)
“Robbery is defined in section 211 as ‘the felonious taking of personal property in
the possession of another, from his person or immediate presence, and against his will,
accomplished by means of force or fear.’ ” (People v. Scott (2009) 45 Cal.4th 743, 749.)
“Robbery requires the ‘specific intent to permanently deprive’ the victim of his or her
property.” (People v. Mora and Rangel (2018) 5 Cal.5th 442, 489.) “ ‘[T]he evidence
must show that the requisite intent to steal arose either before or during the commission
of the act of force.’ ” (People v. Kipp (2001) 26 Cal.4th 1100, 1128 (Kipp).)
The evidence in this case amply proved robbery. As for identity, the victim
repeatedly testified Lara was the robber. That was sufficient to prove identity. 6
5 Because Lara does not challenge any other element, we focus only on identity and
intent.
6 Although Lara claims the victim was not credible, we may not second-guess a
jury’s resolution of credibility. So long as the evidence is neither physically impossible
nor inherently improbable, it is sufficient. (People v. Panah (2005) 35 Cal.4th 395, 489.)
4.
The evidence also readily proved contemporaneous intent. The victim testified
Lara warned him to remain silent and then shot him. When the victim subsequently
reached for his phone to call for help, it was missing. With this evidence the jury could
reasonably conclude the phone was taken as part of the effort to silence the victim.
Indeed, the effort was successful because the victim was unable to seek assistance, albeit
temporarily.
Other evidence established the phone was operating through a cell phone tower
near Lara’s residence shortly after the shooting. This supports the fact Lara was the
robber. Combined, the evidence sufficiently proved the identity and intent necessary for
robbery. We reject Lara’s contrary contention.
II. Lack of Lesser Included Offense Not Prejudicial
Next, Lara faults the court for not instructing the jury with theft as a lesser
included alternative to robbery. He bases his argument on “the issue of after-formed
intent.” In other words, he contends the evidence was sufficient to support an inference
he formed the intent to steal the victim’s phone after the shooting.
The People claim “there was insufficient evidence to support a theory of theft but
not robbery.” We disagree but find the error harmless.
“A trial court has a sua sponte duty to ‘giv[e] instructions on lesser included
offenses when the evidence raises a question as to whether all of the elements of the
charged offense were present [citation], but not when there is no evidence that the offense
was less than that charged.’ ” (People v. Eid (2014) 59 Cal.4th 650, 656.) “ ‘[A] lesser
offense is necessarily included in a greater offense if either the statutory elements of the
greater offense, or the facts actually alleged in the accusatory pleading, include all the
elements of the lesser offense, such that the greater cannot be committed without also
committing the lesser.’ ” (People v. Licas (2007) 41 Cal.4th 362, 366 (Licas); People v.
We have no occasion to conclusively doubt the victim’s testimony Lara was the only
person in the home when he shot the victim and the phone went missing.
5.
Gonzalez (2018) 5 Cal.5th 186, 196-197 (Gonzalez).) “ ‘Theft is a lesser included
offense of robbery.’ ” (People v. Friend (2009) 47 Cal.4th 1, 51.)
A trial court’s asserted error in failing to instruct on a lesser included offense is
reviewed de novo. (Licas, supra, 41 Cal.4th at p. 366.) In reviewing the record for this
type of error, we view it in the light most favorable to the accused. (People v. Woods
(2015) 241 Cal.App.4th 461, 475.) “[U]ncertainty about whether the evidence is
sufficient to warrant instructions should be resolved in favor of the accused [citation].
Even evidence that is unconvincing or subject to justifiable suspicion may constitute
substantial evidence and may trigger the lesser-included-offense requirement.” (People
v. Vasquez (2018) 30 Cal.App.5th 786, 792.) “The failure to instruct on lesser included
offenses supported by substantial evidence” is reversible only when it is reasonably
probable the accused would have received a more favorable result absent the error.
(Gonzalez, supra, 5 Cal.5th at pp. 195-196.)
Viewed in the light most favorable to Lara, the record supports a theory he shot
the victim as punishment or for revenge relative to the tools or simply as a witness to
other crimes. After shooting the victim, Lara only then fortuitously noticed and took the
victim’s phone from a nearby table. After all, Lara trafficked in stolen goods and
electronics often prove valuable. This view supports an instruction on theft as a lesser
included offense. The court erred by not providing a corresponding instruction to the
jury.
The problem with reversal in this case is that the jury was never presented with the
after-formed intent theory. Instead, Lara’s defense was that he was not the culprit. 7 The
parties’ respective presentations through testimony and closing argument left the jury
with “ ‘an all-or-nothing choice’: the jury could either find that [Lara] had committed the
[crimes] or it could find that he had committed no crime” at all. (Friend, supra, 47
7 We discuss the defense strategy in greater detail at part III., post.
6.
Cal.4th at p. 52; see People v. Larsen (2012) 205 Cal.App.4th 810, 831 [in assessing
prejudice, reviewing courts properly consider “the closing arguments of counsel”].)
Because Lara did not present a challenge to the robbery charge, 8 it is unlikely the
jury would have rejected robbery and instead found him guilty of theft had it received
instructions theft was a lesser included offense. Accordingly, the instructional error is
harmless.
III. Counsel Was Not Ineffective
As discussed, to constitute robbery, the intent to steal must form prior to or during
the use of force. (Kipp, supra, 26 Cal.4th at p. 1128.) Lara believes his counsel was
deficient for not requesting a pinpoint instruction highlighting contemporaneous intent to
the jury. The People argue “the court’s instructions on robbery explained to the jury that
[Lara] had to intend to steal [the victim’s] property before or during the application of
force to be convicted of robbery.”
We agree with the People. We also find counsel’s strategy in seeking a full
acquittal by arguing misidentification was reasonable and incompatible with undermining
the intent necessary to prove robbery. Counsel’s reasonable strategic choice rendered it
unnecessary, even ill-advised, to attack the robbery charge by focusing on after-formed
intent.
A. Additional Background
As pertinent, the court’s pattern jury instructions on robbery explained Lara’s
“intent to take the property must have been formed before or during the time [he] used
force or fear. If [he] did not form this required intent until after using the force or fear,
then [he] did not commit robbery.” (CALCRIM No. 1600.)
8 Lara did argue the evidence was insufficient to prove robbery in a section 1118.1
motion outside the jury’s presence. As discussed at part III., post, the motion outside the
jury’s presence is consistent with the mistaken identity defense presented to the jury.
7.
In closing argument, Lara’s counsel focused on identity. For example, he stated,
“Really, what we’re talking about is the reliability of [the victim’s] identification.”
Counsel concluded, “[T]here’s very compelling, persuasive evidence in this case that Mr.
Lara did not shoot” the victim.
B. Analysis
“ ‘[T]o establish a claim of ineffective assistance of counsel, [a] defendant bears
the burden of demonstrating, first, that counsel’s performance was deficient because it
“fell below an objective standard of reasonableness [¶] ... under prevailing professional
norms.” [Citations.] Unless a defendant establishes the contrary, we shall presume that
“counsel’s performance fell within the wide range of professional competence and that
counsel’s actions and inactions can be explained as a matter of sound trial strategy.” ’ ”
(People v. Bell (2019) 7 Cal.5th 70, 125.) “ ‘ “If a defendant meets the burden of
establishing that counsel’s performance was deficient, he or she also must show that
counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” ’ ” (Ibid.) “[W]e ‘defer[ ] to counsel’s reasonable tactical decisions’ and
presume that ‘counsel acted within the wide range of reasonable professional
assistance.’ ” (People v. Arredondo (2019) 8 Cal.5th 694, 711.)
Here, counsel determined undermining the entire case by arguing misidentification
was the best strategy. This is an objectively reasonable choice and we accord it great
deference. Lara stood to gain little by achieving acquittal on anything other than
attempted murder and its attendant firearm enhancement. To illustrate the point, if Lara
was acquitted of robbery but found guilty of the other charges and enhancements, he still
would have received at minimum the same 32 years to life sentence on count 1 alone.
(See §§ 187, 664, and 12022.53, subd. (d).) Properly understood, it becomes clear
arguing identity was not only reasonable, but perhaps the best tactic.
8.
Moreover, counsel could have reasonably believed presenting inconsistent
defenses, i.e., identity on the one hand and specifically challenging robbery on the other,
would diminish his credibility with the jury.9 This is true because these inconsistent
defenses would concede, at least to some degree, Lara’s role as the shooter. To reiterate,
distancing Lara from the shooting by arguing misidentification was central to the chosen
defense and critical to a meaningful, practical result.
In conclusion, counsel was not ineffective by attacking the entire case as a whole
instead of individually focusing on a comparatively less important charge. Lara has not
overcome the presumption counsel acted professionally.
In any event, the jury instructions adequately covered the point. The instructions
clearly explain the difference between robbery and after-acquired-intent theft. (See
CALCRIM No. 1600.) For all these reasons, the ineffective assistance claim fails.
IV. The Fines and Fees Were Properly Imposed
Last, Lara claims “[i]mposition of any fines, fees, or assessments, without a
hearing to determine whether appellant had the ability to pay, violates due process under
the state and federal constitutions.” He concludes “[t]he record does not support a
reasonable inference that appellant had, or would have in the foreseeable future, the
ability to pay the fines, fees, and assessments.”
The People argue Lara “forfeited [the] claim by failing to raise it below” and
otherwise “did not show an inability to pay.” We agree the claim is forfeited.
A. Additional Background
As part of the judgment, the court imposed a $300 restitution fine (§ 1202.4, subd.
(b)), $160 in court operations assessments (§ 1465.8), $120 in court facilities assessments
9 Counsel did argue contemporaneous intent to steal was unproven during a section
1118.1 motion outside the jury’s presence. Although technically inconsistent with the
overall identity defense, it was not inconsistent with the defense presented to the jury
because the jury was unaware of the motion. This further supports counsel was well
aware of all the issues and chose not to present inconsistent defenses to the jury.
9.
(Gov. Code, § 70373), and a $10 theft conviction fine (§ 1202.5). Lara did not object to
their imposition.
B. Analysis
“In general, a defendant who fails to object to the imposition of fines, fees, and
assessments at sentencing forfeits the right to challenge those fines, fees, and assessments
on appeal.” (People v. Greeley (2021) 70 Cal.App.5th 609, 624.) This is particularly
true in cases like this where sentencing occurred after the Duenas court declared a
constitutional right to have courts determine ability to pay prior to imposing mandatory
fines and fees. 10 (Ibid.) Because Lara did not object, we conclude he forfeited this claim.
Were we to address the claim’s merits, we would find any error harmless. The
record discloses Lara earned substantial income for several years preceding his
incarceration and owned property far exceeding the total fines and fees imposed. 11
Moreover, the section 1202.5 theft conviction fine requires the court to consider ability to
pay.12 “In the absence of evidence to the contrary, we presume that the court ‘knows and
applies the correct statutory and case law.’ ” (People v. Thomas (2011) 52 Cal.4th 336,
10 The decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 is the basis for
Lara’s claim. It was published six full months prior to Lara’s sentencing hearing.
11 The income statistics were included in Lara’s post-conviction probation report.
(See § 1203.) The report disclosed Lara earned between $5,000 to $8,000 monthly for
six years preceding this crime and owned a vehicle worth approximately $8,000. His
liabilities were undisclosed.
12 Section 1202.5, subdivision (a) states, in part, “If the court determines that the
defendant has the ability to pay all or part of the fine, the court shall set the amount to be
reimbursed and order the defendant to pay that sum to the county in the manner in which
the court believes reasonable and compatible with the defendant’s financial ability. In
making a determination of whether a defendant has the ability to pay, the court shall take
into account the amount of any other fine imposed upon the defendant and any amount
the defendant has been ordered to pay in restitution.”
10.
361.) The challenge to the fines and fees would fail because the trial court presumptively
considered Lara’s ability to pay. 13
DISPOSITION
The judgment is affirmed.
SMITH, J.
WE CONCUR:
LEVY, Acting P. J.
MEEHAN, J.
13 To the extent Lara faults the court’s imposition of fines as unfounded, he is
incorrect. The record contained substantial evidence of his ability to pay.
11.